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Minors (Property and Contracts) Act 1970 No 60

Status information

Currency of version

Historical version for 1 July 2010 to 28 October 2013 (generated 6 November 2013 at 09:41). Legislation on the NSW legislation website is usually updated within 3 working days.

Provisions in forceAll the provisions displayed in this version of the legislation have commenced. For commencement and other details see the Historical notes.

New South Wales

See also:Crimes and Courts Legislation Amendment Bill 2013

Contents

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New South Wales


Part 1 Preliminary1 Name of Act and commencement 22 (Repealed) 23 Amendments and saving 24 Savings 25 The Crown 36 Definitions 37 This and other Acts cumulative 4

Part 2 Capacity at eighteen years8 Civil acts generally 59 Full age generally 5

10 Fiduciary office 511 Legal proceedings 612 Estoppel 613 Laches and acquiescence 614 Tort: consent etc 615 Domicile 7

Part 3 Capacity of minors16 Application 8

Historical version for 1.7.2010 to 28.10.2013 (generated on 6.11.2013 at 09:41)

Minors (Property and Contracts) Act 1970 No 60 [NSW]Contents

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17 Preliminary 818 Age of understanding 819 Beneficial civil act 820 Disposition for consideration 821 Gift 822 Act pursuant to duty 923 Investment in government securities 924 Protection of strangers 925 Receipt by married minor 926 Capacity by order of Supreme Court 927 Approval of contract or disposition 928 Certified disposition by a minor 1029 Certified disposition to a minor 1030 Affirmation 1131 Repudiation by minor 1232 Repudiation by representative of deceased minor 1233 Notice of repudiation 1234 Repudiation by court for minor 1235 Restriction on effect of repudiation 1236 Election by court 1337 Adjustment on repudiation 1338 Civil act not repudiated 1439 Enforceability by minor participant 14

Part 4 Courts40 Jurisdiction 1541 Removal into Supreme Court 1542 (Repealed) 1543 Reference of questions of benefit etc 1544 Costs 1645 Allowance of time 16

Part 5 General46 Agency 1747 Guarantee 1748 Liability for tort 1749 Medical and dental treatment 1750 Property of minor 1851 Rules of court 18

First Schedule (Repealed) 19Second

Schedule Saving of specific enactments 20

NotesTable of amending instruments 21Table of amendments 23

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New South Wales

An Act relating to the contractual and testamentary capacity and proprietary rights and obligationsof persons under the age of twenty-one years; for these and other purposes to amend theConveyancing and Law of Property Act 1898 and the Wills, Probate and Administration Act 1898and certain other Acts in certain respects; and for purposes connected therewith.


Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 1 Preliminary

Part 1 Preliminary

1 Name of Act and commencement

(1) This Act may be cited as the Minors (Property and Contracts) Act 1970.

(2) Subject to subsection (3), this Act shall commence on a day to be appointed by theGovernor and notified by proclamation published in the Gazette, being a day notearlier than six months after the day on which Her Majesty’s assent to this Act wassignified.

(3) If on the anniversary of the day on which Her Majesty’s assent to this Act is signifieda day has not been appointed under subsection (2), this Act shall, notwithstandingthat subsection, commence on that anniversary.

2 (Repealed)

3 Amendments and saving

(1) (Repealed)

(2) An amendment made by subsection (1) does not:(a) affect the previous operation of the Act amended, or anything duly suffered,

done, or commenced to be done under the Act amended,(b) affect any right, privilege, obligation, or liability acquired, accrued, or

incurred under the Act amended, or(c) affect any investigation, legal proceeding, or remedy in respect of any such

right, privilege, obligation, or liability as aforesaid.

(3) Any investigation, legal proceeding, or remedy mentioned in paragraph (c) ofsubsection (2) may be instituted, continued or enforced as if this Act had not beenpassed.

(4) Notwithstanding the amendments made by subsection (1):(a) the law in force immediately before the commencement of this Act and

relating to testamentary capacity and to the form of wills continues to apply toa will made before the commencement of this Act,

(b) the law in force immediately before the commencement of this Act andrelating to the revocation of wills continues to apply to a revocation beforecommencement of this Act.

(5) The amendments made by subsection (1) to Part 4 of the Conveyancing and Law ofProperty Act 1898 apply to and in respect of proceedings in the Supreme Court underthat Part commenced after the commencement of this Act and to and in respect of alease made under section 68 of that Act after the commencement of this Act.

(6) The amendments made by subsection (1) to Part 5 of the Conveyancing and Law ofProperty Act 1898 apply to and in respect of a surrender or renewal made after thecommencement of this Act.

(7) The amendments made by subsection (1) to the Usury, Bills of Lading, and WrittenMemoranda Act 1902 do not apply to a promise or ratification made before thecommencement of this Act.

4 Savings

(1) This Act (except subsection (1) of section 3) does not affect the operation of theprovisions relating to age in the enactments specified in the Second Schedule.

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(2) This Act does not affect any power or authority which any person would have if thisAct had not been passed, to give consent or to acquiesce in relation to a person underthe age of twenty-one years where, under any law of the Commonwealth, suchconsent or acquiescence is required or permitted.

5 The Crown

This Act binds the Crown not only in right of New South Wales but also, so far asthe legislative power of Parliament permits, the Crown in all its other capacities.

6 Definitions

(1) In this Act, unless the context or subject matter otherwise indicates or requires:Civil act means:(a) a contract,(b) an election to rescind or determine a contract for fraud, mistake, breach or

otherwise,(c) a disposition of property,(d) a disclaimer,(e) an acknowledgment of receipt of property,(f) a discharge or acquittance,(g) an exercise of a power under a contract or under a settlement, will or other

instrument,(h) an assent or consent to, acquiescence in, or acknowledgment or waiver of, any

matter by a person affecting the person’s rights or obligations under a contractor relating to property,

(i) a release of any cause of action,(j) a grant of any leave or licence,(k) an election in relation to rights under a will or other instrument, or in relation

to conversion as between realty and personalty, or(l) an act done:

(i) in relation to the formation,(ii) in relation to becoming or ceasing to be a member or officer, or

(iii) as a member or officer:of a partnership, or of an association, company or society, whether acorporation or not,

(m) without limiting the generality of the foregoing, any act relating to contractualor proprietary rights or obligations or to any chose in action:

whether having effect at law or in equity.Disposition of property includes:(a) a conveyance, transfer, assignment, appointment, settlement, mortgage,

delivery, payment, lease, bailment, reconveyance or discharge of mortgage,(b) the creation of a trust,(c) the release or surrender of any property, and(d) the grant of a power in respect of property:whether having effect at law or in equity.Minor means a person under the age of 18 years; and minority has a correspondingmeaning.

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Minor participant, in relation to a civil act, means a person who, while the person isa minor, participates in the civil act.Party, in relation to a civil act, includes a person who does, makes, accepts, suffersor joins in the civil act; and participate and participant have correspondingmeanings.Property includes real and personal property and any estate or interest in propertyreal or personal, and money, and any debt, and any cause of action for damages(including damages for personal injury), and any other chose in action, and any otherright or interest.

(2) The making of a will, whether in exercise of a power of appointment or otherwise, orthe revocation of a will, is not a civil act and is not a disposition of property for thepurposes of this Act.

(3) Where a person participates in a civil act while a minor and by this Act the civil actis or becomes presumptively binding on the person:(a) the civil act is, at and after the time of the person’s participation, as binding on

the person and the person’s personal representative and has effect as if theperson were not under the disability of infancy at the time of the person’sparticipation, and

(b) except where other provision is made by this Act, the civil act is binding andhas effect as mentioned in paragraph (a) in favour of all persons.

7 This and other Acts cumulative

(1) Where, under any Act, a civil act in which a person participates while under the ageof twenty-one years is given any force or effect, that force or effect is not vitiated ordiminished by anything in Part 2 or Part 3.

(2) Where, under any provision in Part 2 or Part 3, a civil act in which a personparticipates while under the age of twenty-one years is given any force or effect, thatforce or effect is not vitiated or diminished by anything in any other Act.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 2 Capacity at eighteen years

Part 2 Capacity at eighteen years

8 Civil acts generally

A person is not under the disability of infancy in relation to a civil act in which theperson participates when aged eighteen years or upwards and after thecommencement of this Act.

9 Full age generally

(1) After the commencement of this Act:(a) for the purposes of any rule of law, and(b) except so far as the context otherwise requires, for the purposes of:

(i) any Act, whether passed before or after the commencement of this Act,and

(ii) any instrument made under an Act, whether the instrument is madebefore or after the commencement of this Act:

a person aged eighteen years or upwards on the commencement of this Act or whoattains the age of eighteen years after the commencement of this Act:(c) is of full age and adult,(d) is sui juris, subject however to the law relating to mental illness, and(e) is not under any disability or incapacity of infancy.

(2) Subsection (1) does not affect the construction of words which:(a) are contained in:

(i) any matter (whether in writing or not) constituting or evidencing a civilact in which any person participates before the commencement of thisAct, or

(ii) the will of a person dying before the commencement of this Act, and(b) refer to infancy or adulthood, to full age, to incapacity or capacity, or to

disability or ability, or refer to a person being or not being sui juris, or makeany similar reference:

except so far as the context otherwise requires.

(3) Subsection (1) does not affect:(a) the construction of any reference to “the adult male basic wage”, the “adult

female basic wage”, or any similar expression in any Act or in any instrumentmade under an Act,

(b) the construction of any Act, or of any instrument made under an Act, so far asthe Act or instrument gives rise to any liability for fine or imprisonment orother punishment for an offence, or

(c) the power to make any order under Part 3 of the Guardianship Act 1987 or theconstruction or operation of an order made under that Part.

10 Fiduciary office

(1) A person aged eighteen years or upwards may, after the commencement of this Act:(a) be granted probate of a will as executor or letters of administration as

administrator of the estate of a deceased person,(b) become a trustee upon a constructive or other trust by declaration,

appointment or otherwise,(c) be a guardian of the person or of the estate of a minor,

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(d) be a next friend or guardian ad litem of a minor or of a mentally ill person forthe purpose of proceedings in any court,

(e) be appointed as a receiver,(f) be appointed as a committee or manager under the Mental Health Act 1958,

and(g) be appointed to any other fiduciary office.

(2) After the commencement of this Act a person aged eighteen years or upwards andholding any of the offices mentioned in paragraphs (a) to (f) of subsection (1) or anyother fiduciary office may exercise the powers of that office and shall not be underthe disability of infancy in relation to the rights, duties and liabilities incident to thatoffice.

11 Legal proceedings

After the commencement of this Act, a person aged eighteen years or upwards:(a) is not under the disability of infancy in relation to proceedings in any court,

and(b) may commence, carry on, defend, compromise, settle, abandon, and otherwise

engage in, and act in relation to, proceedings in any court without a next friendor guardian ad litem.

12 Estoppel

A person is estopped by his or her deed made, or by his or her words written orspoken, or by his or her conduct, when aged eighteen years or upwards and after thecommencement of this Act, as if the person were aged twenty-one years or upwards.

13 Laches and acquiescence

A person is bound by the person’s laches or acquiescence when aged eighteen yearsor upwards and after the commencement of this Act as if the person were agedtwenty-one years or upwards.

14 Tort: consent etc

(1) In matters of tort, the doctrines of:(a) leave and licence,(b) consent,(c) volenti non fit injuria, and(d) voluntary assumption of risk:apply in the case of a person aged eighteen years or upwards as they apply in the caseof a person aged twenty-one years or upwards.

(2) Subsection (1) applies to:(a) a leave and licence granted after the commencement of this Act,(b) a consent given after the commencement of this Act,(c) a person who is volens after the commencement of this Act, and(d) a risk voluntarily assumed after the commencement of this Act.

(3) This section does not affect such operation as the doctrines mentioned in subsection(1) may have in the case of a minor.

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15 Domicile

(1) The acts and state of mind after the commencement of this Act of a person agedeighteen years or upwards have, as regards the domicile of that person or of any otherperson, the same effect as if the person were aged twenty-one years or upwards.

(2) The acts and state of mind after the commencement of this Act of any person have,as regards the domicile of a person aged eighteen years or upwards, such effect onlyas those acts and state of mind would have if the latter person were aged twenty-oneyears or upwards.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 3 Capacity of minors

Part 3 Capacity of minors

16 Application

This Part applies in relation to a civil act in which a minor participates after thecommencement of this Act.

17 Preliminary

Where a minor participates in a civil act, the civil act is not binding on the minorexcept as provided by this Act.

18 Age of understanding

This Part does not make presumptively binding on a minor a civil act in which theminor participates, or appears to participate, while lacking, by reason of youth, theunderstanding necessary for his or her participation in the civil act.

19 Beneficial civil act

Where a minor participates in a civil act and his or her participation is for his or herbenefit at the time of his or her participation, the civil act is presumptively bindingon the minor.

20 Disposition for consideration

(1) Where:(a) a minor makes a disposition of property for a consideration received or to be

received by the minor,(b) the consideration is not manifestly inadequate at the time of the disposition,

and(c) the minor receives the whole or any part of the consideration:the disposition is presumptively binding on the minor.

(2) Where:(a) a disposition of property is made to a minor for a consideration given or to be

given by the minor, and(b) the consideration is not manifestly excessive at the time of the disposition:the disposition is presumptively binding on the minor.

(3) Save to the extent to which, under Part 3 of the Sale of Goods Act 1923 or otherwise,a promise may operate as a disposition of property, subsection (2) does not makepresumptively binding on a minor a promise by the minor which is the whole or partof the consideration for a disposition of property to the minor.

(4) Where the burden of, or arising under, a covenant or other promise runs with propertyso as to impose an obligation or restriction on a person to whom a disposition of theproperty is made in any manner or circumstances, subsection (2) does not makepresumptively binding on a minor a disposition of that property to the minor in thatmanner or those circumstances.

21 Gift

Where a minor makes a disposition of property wholly or partly as a gift, and thedisposition is reasonable at the time when it is made, the disposition is presumptivelybinding on the minor.

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22 Act pursuant to duty

Where a minor participates in a civil act pursuant to a contractual or other dutybinding on the minor, the civil act is presumptively binding on the minor.

23 Investment in government securities

An investment by a minor in:(a) any public funds or government stock or government securities of any State of

Australia or of the Commonwealth, or(b) any debentures or securities guaranteed by the Government or by the

Treasurer:is presumptively binding on the minor.

24 Protection of strangers

Where a minor participates in a civil act and a person who is not a party to the civilact:(a) acquires property affected by the civil act or any estate or interest in property

so affected for valuable consideration, or(b) acts, otherwise than as a volunteer and so as to alter his or her position, on the

basis of the validity of the civil act:in either case without notice that the minor participant is at the time of his or herparticipation in the civil act a minor, the civil act is, in favour of that person and infavour of any person claiming under that person, presumptively binding on the minorparticipant.

25 Receipt by married minor

A receipt by a married minor for rents, profits or other income or for accumulationsof income is presumptively binding on the minor.

26 Capacity by order of Supreme Court

(1) The Supreme Court, on application by a minor, may, by order:(a) grant to the minor capacity to participate in any civil act or in any description

of civil acts or in all civil acts, and(b) rescind or vary an order under paragraph (a).

(2) The Court may make an order under subsection (1) on such terms and conditions asthe Court thinks fit.

(3) The Court shall not make an order under this section unless it appears to the Courtthat the order is for the benefit of the minor.

(4) A civil act in which a minor participates is, if authorised by a grant of capacity underthis section, presumptively binding on the minor.

(5) An order of rescission or variation under paragraph (b) of subsection (1) does notaffect the validity of a civil act in which the minor has participated before the makingof the order of rescission or variation.

27 Approval of contract or disposition

(1) A contract made by a minor or a disposition of property made by or to a minorpursuant to an approval under this section is presumptively binding on the minor.

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(2) The Local Court may, on application by a minor, by order approve a contractproposed to be made by a minor or a disposition of property proposed to be made byor to a minor.

(3) (Repealed)

(4) The Local Court may make an order under this section on such terms and conditionsas the Court thinks fit.

(5) The Local Court shall not make an order under this section unless it appears to theCourt that:(a) the minor would not undertake obligations under the proposed contract or

dispose of property under the proposed disposition of property to the value of$10,000 or upwards, and

(b) the order is for the benefit of the minor.

(6) A refusal to make an order under this section or the making of an order subject to anyterms or conditions does not prevent the minor making a further application, whetheron evidence of the same or other facts, to the Supreme Court under section 26.

(7) Parts 2, 3 and 5 of the Crimes (Local Courts Appeal and Review) Act 2001 (as appliedby section 70 of the Local Court Act 2007) do not apply to an order under this section.

28 Certified disposition by a minor

(1) Where a minor makes a disposition of property for consideration and a certificate inrespect of the disposition is given in accordance with this section, the disposition ispresumptively binding on the minor.

(2) A certificate for the purposes of this section in respect of a disposition of propertymade by a minor for consideration must:(a) be given before, but not more than seven days before, the making of the

disposition, and(b) be given:

(i) by a solicitor instructed and employed independently of any other partyto the disposition, or

(ii) by the NSW Trustee and Guardian, and(c) state that the person giving the certificate is satisfied that:

(i) the minor understands the true purport and effect in law of thedisposition, and

(ii) the minor makes the disposition freely and voluntarily, and(d) state that the person giving the certificate has received a written statement

from an independent and appropriately qualified valuer or other financialadviser to the effect that the consideration for the disposition is not manifestlyinadequate, and

(e) have annexed to the certificate a copy of the written statement referred to inparagraph (d).

29 Certified disposition to a minor

(1) Where a disposition of property is made to a minor for consideration and a certificatein respect of the disposition is given in accordance with this section, the dispositionis presumptively binding on the minor.

(2) A certificate for the purposes of this section in respect of a disposition of propertymade to a minor for consideration must:

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(a) be given before, but not more than seven days before, the making of thedisposition, and

(b) be given:(i) by a solicitor instructed and employed independently of any other party

to the disposition, or(ii) by the NSW Trustee and Guardian, and

(c) state that the person giving the certificate is satisfied that:(i) the minor understands the true purport and effect in law of the

disposition, and(ii) the minor takes the disposition freely and voluntarily, and

(d) state that the person giving the certificate has received a written statementfrom an independent and appropriately qualified valuer or other financialadviser to the effect that the consideration for the disposition is not manifestlyexcessive, and

(e) have annexed to the certificate a copy of the written statement referred to inparagraph (d).

(3) Save to the extent to which, under Part 3 of the Sale of Goods Act 1923 or otherwise,a promise may operate as a disposition of property, this section does not makepresumptively binding on a minor a promise by the minor which is the whole or partof the consideration for a disposition of property to the minor.

(4) Where the burden of, or arising under, a covenant or other promise runs with propertyso as to impose an obligation or restriction on a person to whom a disposition of theproperty is made in any manner or circumstances, this section does not makepresumptively binding on a minor a disposition of that property made to the minor inthat manner or those circumstances.

30 Affirmation

(1) Where a person participates in a civil act while the person is a minor, the civil actmay be affirmed:(a) while the person remains a minor, on the person’s behalf by order of a court

having jurisdiction under this section,(b) after the person attains the age of eighteen years, by the person, or(c) after the person’s death, by the person’s personal representative.

(2) The court may affirm a civil act on behalf of a minor participant in the civil act underparagraph (a) of subsection (1) on application by the minor participant or by anyother person interested in the civil act.

(3) Subject to section 36, the court shall not affirm a civil act on behalf of a minorparticipant in the civil act under paragraph (a) of subsection (1) unless it appears tothe court that the affirmation is for the benefit of the minor participant.

(4) Where a civil act is affirmed pursuant to this section by or on behalf of a minorparticipant in the civil act, or by the personal representative of a deceased minorparticipant in the civil act, the civil act is presumptively binding on the minorparticipant.

(5) An affirmation of a civil act under this section by a minor participant in the civil actor by the personal representative of a deceased minor participant in the civil act:(a) may be by words, written or spoken, or by conduct, and(b) need not be communicated to any person.

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31 Repudiation by minor

(1) Where a minor has participated in a civil act, then, subject to sections 33 and 35 andsubject to subsection (2), the minor participant may repudiate the civil act at any timeduring his or her minority or afterwards but before the minor attains the age ofnineteen years.

(2) A repudiation of a civil act by a minor participant in the civil act does not have effectif it appears that, at the time of the repudiation, the civil act is for the benefit of theminor participant.

32 Repudiation by representative of deceased minor

(1) Where a minor has participated in a civil act and dies before attaining the age ofnineteen years, then, subject to sections 33 and 35 and subject to subsection (2), hisor her personal representative may repudiate the civil act at any time before the endof nineteen years after the birth of the minor participant or before the end of one yearafter the death of the minor participant whichever is the earlier.

(2) A repudiation of a civil act by the representative of a deceased minor participant inthe civil act does not have effect if it appears that, at the time of the repudiation, thecivil act is for the benefit of the estate of the deceased minor participant.

33 Notice of repudiation

(1) Where a civil act is repudiated under section 31 or section 32:(a) the repudiation does not affect any person unless notice in accordance with

subsection (2) is served on that person or on a person under whom that personclaims,

(b) the repudiation has effect against a person served with the notice and againsta person claiming under the person served as if made on the date of service ofthe notice.

(2) A notice of repudiation must be in writing and signed by the person making therepudiation or by the person’s agent.

(3) A notice of repudiation may be served as provided in section 170 of theConveyancing Act 1919.

34 Repudiation by court for minor

(1) Where a minor has participated in a civil act, then, subject to section 35 and subjectto subsection (2), a court having jurisdiction under this section may, by order,repudiate the civil act on behalf of the minor participant at any time during his or herminority.

(2) The court shall not repudiate a civil act on behalf of a minor participant if it appearsto the court that the civil act is for the benefit of the minor participant.

(3) Where the court repudiates a civil act on behalf of a minor participant, the court shallgive such directions as it thinks fit for service of notice of the order of repudiation onpersons interested in the civil act.

35 Restriction on effect of repudiation

(1) Where a civil act is presumptively binding on a minor participant in the civil act infavour of another party to the civil act or in favour of any other person, a repudiationof the civil act under any of sections 31, 32 and 34 by or on behalf of the minorparticipant, or, if the minor participant has died, by his or her personal representative,does not have effect as against that other party or person.

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(2) Where a person becomes a member of an association while the person is a minor andafter the person becomes a member any civil act in which the person has participatedfor the purpose of becoming a member of the association, or as a member of theassociation, or otherwise in relation to the association, is repudiated under any ofsections 31, 32 and 34 by the person or on the person’s behalf, or, if the person hasdied, by the person’s personal representative, the repudiation does not affect suchright as any other member of the association or a creditor of the association may havefor the application of the interest of the firstmentioned person, or if the person hasdied the interest of the person’s estate, in the property of the association in or towardssatisfaction of any liability of the association which accrues before the repudiation orwhich accrues by reason of anything done or omitted before the repudiation.

(3) For the purposes of subsection (2), association includes a partnership but does notinclude a corporation.

36 Election by court

Where, on application to a court having jurisdiction under this section by a personinterested in a civil act, it appears to the court that the civil act is not presumptivelybinding on a minor participant in the civil act in favour of the applicant, the courtshall either affirm the civil act under section 30 or repudiate the civil act undersection 34 on behalf of the minor participant.

37 Adjustment on repudiation

(1) Where a civil act is repudiated under any of sections 31, 32 and 34, a court havingjurisdiction under this section may, on the application of any person interested in thecivil act, make orders:(a) for the confirmation, wholly or in part, of the civil act or of anything done

under the civil act, or(b) for the adjustment of rights arising out of the civil act or out of the repudiation

or out of anything done under the civil act.

(2) Without limiting the generality of paragraph (a) of subsection (1), where on anapplication under this section, it appears to the court that any party to the civil act wasinduced to participate in the civil act by a misrepresentation made by a minorparticipant in the civil act, being a fraudulent misrepresentation as to the age of theminor participant or as to any other matter affecting the capacity of the minorparticipant to participate in the civil act, the court may confirm the civil act andanything done under the civil act.

(3) Where a civil act is presumptively binding in favour of any person, the court shall notmake any order under this section adversely affecting the person’s rights except withthe person’s consent.

(4) Subject to subsection (3), and except so far as the court confirms the civil act oranything done under the civil act, the court shall make such orders as are authorisedby this section and as the court thinks fit for the purpose of securing so far aspracticable that:(a) each minor participant in the civil act makes just compensation for all

property, services and other things derived by him or her by or under the civilact to the extent that the derivation of that property or of those services orthings is for his or her benefit,

(b) each other participant in the civil act makes just compensation for all property,services and other things derived by him or her by or under the civil act, and

(c) subject to paragraphs (a) and (b), the parties to the civil act and those claimingunder them are restored to their positions before the time of the civil act.

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(5) Any court having jurisdiction under this section may, for the purposes of this section,make orders:(a) for the delivery of goods, and(b) for the payment of money.

(6) In addition to its jurisdiction under subsection (5), the Supreme Court may, for thepurposes of this section, make orders for:(a) the making of any disposition of property,(b) sale or other realisation of property,(c) the disposal of the proceeds of sale or other realisation of property,(d) the creation of a charge on property in favour of any person,(e) the enforcement of a charge so created,(f) the appointment and regulation of the proceedings of a receiver of property,(g) the vesting of property in any person, and(h) the rescission or variation of any order of the Supreme Court under this

section.

(7) A court may make an order under this section on such terms and conditions as thecourt thinks fit.

(8) A civil act to which a person is a party while a minor and anything done thereunderis, to the extent to which it is confirmed under this section, presumptively binding onthe person.

(9) Sections 78 and 79 of the Trustee Act 1925 apply to a vesting order, and to the powerto make a vesting order, under this section.

(10) Subsection (2) of section 78 of the Trustee Act 1925 applies to a vesting order underthis section as if this section were included in the provisions of Part 3 of that Act.

38 Civil act not repudiated

Where a person participates in a civil act while the person is a minor and the civil actis not repudiated under any of sections 31, 32 and 34 by that person or by the person’spersonal representative or by a court on the person’s behalf within the timesrespectively fixed by those sections, the civil act is presumptively binding on theminor participant.

39 Enforceability by minor participant

Subject to section 37, a court shall not give any judgment or make any order in favourof a minor participant in a civil act, or in favour of the personal representative of adeceased minor participant in a civil act, for the enforcement of the civil act, unlessthe civil act is presumptively binding on the minor participant in favour of the personagainst whom the judgment is given or order is made.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 4 Courts

Part 4 Courts

40 Jurisdiction

(1) The courts having jurisdiction under sections 30, 34, 36 and 37 are as specified in thissection.

(2) The Supreme Court has jurisdiction without limitation as to value.

(3) A district court has jurisdiction where it appears to the district court that the matterin question, so far as concerns any minor participant in the civil act to which theproceedings relate, does not amount to a value exceeding $100,000.

(4) The Local Court has jurisdiction where it appears to the Local Court that the matterin question, so far as concerns any minor participant in the civil act to which theproceedings relate, does not amount to a value exceeding $10,000.

(5) A district court or Local Court has jurisdiction as provided in this section whether ornot any party to the proceedings is present or resident in the district of the court andwhether or not the subject matter of the proceedings has any connection with thedistrict of the court.

41 Removal into Supreme Court

(1) This section applies to proceedings under any of sections 30, 34, 36 and 37.

(2) The District Court or the Local Court may, in respect of pending proceedings, orderthat the proceedings be removed into the Supreme Court.

(3) The Supreme Court, on application by a party to proceedings in the District Court orthe Local Court made before final order in the proceedings, or made pursuant to asummons or other document filed in the Supreme Court before final order in theproceedings, may, on such terms as the Supreme Court thinks fit, order that theproceedings be removed into the Supreme Court.

(4) On the making of an order for removal under this section the registrar or clerk of thecourt from which the proceedings are removed shall send the record of theproceedings to the Supreme Court.

(5) In proceedings removed into the Supreme Court under this section the SupremeCourt:(a) has the jurisdiction which it would have if the application commencing the

proceedings had been made in the Supreme Court, and(b) may vary or rescind any order made in the proceedings by any court from

which the proceedings have been removed under this section or transferredunder section 42.

42 (Repealed)

43 Reference of questions of benefit etc

(1) Where, in proceedings under any of sections 19, 26, 27, 30, 31, 32, 34, 37 and 50, aquestion arises whether a civil act or some other matter is or was for the benefit of aperson who at any material time is a minor, the court may:(a) refer the question to a parent of the minor or to a guardian of his or her person

or of his or her estate or to any other person, and(b) order any party to the proceedings to pay the reasonable costs and expenses of

the referee.

(2) A referee under this section may:

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 4 Courts

(a) subject to any order of the court, make inquiries and otherwise conduct himselfor herself in the matter of the reference in such manner as the referee thinksfit, whether or not in accordance with the principles of natural justice,

(b) file in the court a report of the referee’s consideration and examination of thequestion and making such recommendations as the referee thinks fit in respectof the question, and

(c) appear and be heard in the proceedings.

(3) A referee is under no obligation to do anything under the reference unless the refereeconsents to the appointment and until the referee’s reasonable costs and expenseshave been secured to the referee’s satisfaction.

(4) Where a referee has filed a report under this section:(a) any party to the proceedings who is interested in the question referred may

inspect and make a copy of the report, and(b) the court may, in determining the question referred, have such regard to the

report as the court thinks fit.

(5) Subject to paragraph (a) of subsection (4), the court may make such orders as it thinksfit for the purpose of preventing or limiting publication of a report filed under thissection.

44 Costs

A court may, in proceedings under any of sections 30, 34, 36 and 37, make such orderas it thinks fit as to the costs of the proceedings including, in the case of proceedingsremoved under section 41 or proceedings transferred under section 42, the costs ofthe proceedings before removal or transfer and may assess the whole or any part ofany costs.

45 Allowance of time

(1) A court making an order or giving judgment (whether under this Act or otherwise)against a minor participant in a civil act in civil proceedings in respect of the civil act(in this section called the substantive order or judgment) may, on such terms andconditions as the court thinks fit, by order:(a) give to the minor an extension of time to obey or satisfy the substantive order

or judgment,(b) stay execution or enforcement of the substantive order or judgment against the

minor, or(c) alter or rescind an order made under this section.

(2) The court may make an order under this section at the time when the substantiveorder or judgment is made or given or at any later time or times, but not after theminor participant attains the age of eighteen years.

(3) This section does not authorise an extension or stay enduring beyond the time whenthe minor participant reaches the age of eighteen years.

(4) This section applies in relation to a civil act in which a minor participates after thecommencement of this Act.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 5 General

Part 5 General

46 Agency

(1) After the commencement of this Act, a person under the age of twenty-one years:(a) may appoint an agent by power of attorney or otherwise, and(b) may, by an agent, participate in any civil act and otherwise do or suffer

anything which a person aged twenty-one years or upwards may participate inor do or suffer by an agent.

(2) A civil act in which a minor participates by an agent after the commencement of thisAct and anything which a minor otherwise does or suffers by an agent after thecommencement of this Act has no greater validity or effect as against the minor thanit would if participated in or done or suffered by the minor without an agent.

(3) After the commencement of this Act, a person may, by an agent under the age oftwenty-one years, participate in any civil act and otherwise do or suffer anythingwhich a person may participate in or do or suffer by an agent aged twenty-one yearsor upwards.

47 Guarantee

(1) A guarantor of an obligation of a minor is bound by the guarantee to the extent towhich he or she would be bound if the minor were not a minor.

(2) For the purposes of subsection (1) a minor has, under a civil act in which the minorparticipates, the obligation which the minor would have if the minor were not a minorat the time of his or her participation.

(3) This section applies to a guarantee given after the commencement of this Act.

48 Liability for tort

Where a person under the age of twenty-one years is guilty of a tort, the person isanswerable for the tort whether or not:(a) the tort is connected with a contract, or(b) the cause of action for the tort is in substance a cause of action in contract.

49 Medical and dental treatment

(1) Where medical treatment or dental treatment of a minor aged less than sixteen yearsis carried out with the prior consent of a parent or guardian of the person of the minor,the consent has effect in relation to a claim by the minor for assault or battery inrespect of anything done in the course of that treatment as if, at the time when theconsent is given, the minor were aged twenty-one years or upwards and hadauthorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years orupwards is carried out with the prior consent of the minor, his or her consent haseffect in relation to a claim by him or her for assault or battery in respect of anythingdone in the course of that treatment as if, at the time when the consent is given, he orshe were aged twenty-one years or upwards.

(3) This section does not affect:(a) such operation as a consent may have otherwise than as provided by this

section, or(b) the circumstances in which medical treatment or dental treatment may be

justified in the absence of consent.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Part 5 General

(4) In this section:dental treatment means:(a) treatment by a dentist in the course of the practice of dentistry, or(b) treatment by any person pursuant to directions given in the course of the

practice of dentistry by a dentist.medical treatment means:(i) treatment by a medical practitioner in the course of the practice of medicine or

surgery, or(ii) treatment by any person pursuant to directions given in the course of the

practice of medicine or surgery by a medical practitioner.

50 Property of minor

(1) Where a minor is beneficially entitled at law or in equity to property, the SupremeCourt may, on such terms as the Court thinks fit, make orders authorising a person,either generally or in any particular instance:(a) to make any disposition of the property,(b) to receive the proceeds of disposition of the property,(c) to call for a disposition of the property to the person so authorised or as the

person directs,(d) to receive the income of the property,(e) to sue for and recover any chose in action comprised in the property,(f) to invest the property, or(g) to apply the capital or income of the property for the benefit of the minor.

(2) The Court shall not make an order under this section unless it appears to the Courtthat the order is for the benefit of the minor.

51 Rules of court

(1) The practice and procedure in proceedings under this Act in the Supreme Court shallbe as prescribed by rules of court made under the Supreme Court Act 1970.

(2) Rules of court not inconsistent with this Act may be made by a majority of theDistrict Court judges for the regulation of the practice and procedure in proceedingsunder this Act in the District Courts.

(3)–(5) (Repealed)

(6) Rules of court not inconsistent with this Act may be made under the Local Court Act2007 for the regulation of the practice and procedure in proceedings under this Actin the Local Court.

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Minors (Property and Contracts) Act 1970 No 60 [NSW]

First Schedule (Repealed)

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Second Schedule Saving of specific enactments

Second Schedule Saving of specific enactments

Reference to Act Subject Provision

No 13, 1898 Probate and Administration Section 54.Section 57 (c).

No 22, 1900 University and University Colleges Section 9C.

No 70, 1901 Western Lands Section 18JJ.

No 37, 1904 Closer Settlement Section 26.

No 49, 1906 Mining Section 13A.

No 41, 1912 Parliamentary Electorates and Elections

Section 20 (1).

No 7, 1913 Crown Lands Consolidation Section 239.

No 6, 1919 Conveyancing Section 36.

No 41, 1919 Local Government Section 50.

No 8, 1921 Architects Section 12.

No 25, 1923 Veterinary Surgeons Section 12.

No 7, 1926 Farm Produce Agents Section 8 (a).

No 3, 1927 Land Agents Section 4 (5) (a).

No 3, 1929 Surveyors Section 10 (1).

No 20, 1930 Optometrists Section 19.

No 9, 1945 Physiotherapists Registration Section 21 (1).

No 18, 1945 Public Accountants Registration Section 18 (1) (a).

No 10, 1953 Nurses Registration Section 16.Section 22 (2).Section 34 (2).

No 34, 1953 University of New England Section 11 (a).Section 15 (1).

No 60, 1961 Motor Vehicle Driving Instructors Section 5 (4) (a).

No 17, 1962 Chiropodists Registration Section 22 (1).

No 4, 1963 Commercial Agents and Private Inquiry Agents

Section 10 (10) (a) (iii).

No 29, 1964 Macquarie University Section 11 (a).

No 48, 1964 Pharmacy Section 17 (1) (a).

No 72, 1964 University of Newcastle Section 11 (a).Section 14 (1).

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Minors (Property and Contracts) Act 1970 No 60 [NSW]Historical Notes

The following abbreviations are used in the Historical notes:Am amended LW legislation website Sch ScheduleCl clause No number Schs SchedulesCll clauses p page Sec sectionDiv Division pp pages Secs sectionsDivs Divisions Reg Regulation Subdiv SubdivisionGG Government Gazette Regs Regulations Subdivs SubdivisionsIns inserted Rep repealed Subst substituted

Historical notes

Table of amending instrumentsMinors (Property and Contracts) Act 1970 No 60. Assented to 13.11.1970. Date of commencement,1.7.1971, sec 1 (2) and GG No 60 of 4.6.1971, p 1863. This Act has been amended as follows:

1970 No 52 Supreme Court Act 1970. Assented to 14.10.1970.Date of commencement, Part 9 excepted, 1.7.1972, sec 2 (1) and GG No 59 of 2.6.1972, p 2018. Amended by Supreme Court (Amendment) Act 1972 No 41. Assented to 11.4.1972.

1973 No 9 District Court Act 1973. Assented to 10.4.1973.Date of commencement, 1.7.1973, sec 2 and GG No 75 of 8.6.1973, p 2158.

No 68 Strata Titles Act 1973. Assented to 18.10.1973.Date of commencement, 1.7.1974, sec 2 and GG No 72 of 21.6.1974, p 2179. Amended by Strata Titles (Amendment) Act 1974 No 35. Assented to 19.4.1974. Date of commencement, sec 3 excepted, 1.7.1974, sec 2 (1) and GG No 72 of 21.6.1974, p 2179.

1979 No 78 Legal Services Commission Act 1979. Assented to 16.5.1979.Date of commencement of Sch 1, 21.12.1979, sec 2 (3) and GG No 171 of 7.12.1979, p 6129.

1981 No 90 Miscellaneous Acts (State Bank) Repeal and Amendment Act 1981. Assented to 10.6.1981.Date of commencement of Sch 1, 2.11.1981, sec 2 (2) and GG No 168 of 2.11.1981, p 5673.

No 125 Moneylending (Repeal) Act 1981. Assented to 30.12.1981.Date of commencement of Sch 1, 28.2.1985, sec 2 (2) and GG No 178 of 21.12.1984, p 6297. Amended by Miscellaneous Acts (Credit) Repeal and Amendment Act 1984 No 100. Assented to 28.6.1984.

1982 No 88 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1982. Assented to 25.5.1982.To commence on a day to be appointed and notified under sec 2 (2). No day was so appointed and the Act was repealed by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987.

No 148 Liquor (Repeals and Savings) Act 1982. Assented to 21.12.1982.Date of commencement of Sch 1, 1.7.1983, sec 2 (3) and GG No 74 of 20.5.1983, p 2181.

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1983 No 181 Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1983. Assented to 31.12.1983.The provision of Sch 1 relating to the Minors (Property and Contracts) Act 1970 was not commenced and the Act was repealed by the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 No 11.

1984 No 153 Statute Law (Miscellaneous Amendments) Act 1984. Assented to 10.12.1984.

1987 No 15 Interpretation Act 1987. Assented to 13.4.1987.Date of commencement of Sch 2, 1.9.1987, sec 2 (2) and GG No 136 of 28.8.1987, p 4809.

No 48 Statute Law (Miscellaneous Provisions) Act (No 1) 1987. Assented to 28.5.1987.Date of commencement of Sch 32, except as provided by sec 2 (13), 1.9.1987, sec 2 (12) and GG No 136 of 28.8.1987, p 4809.

No 70 Workers Compensation Act 1987. Assented to 10.6.1987.Date of commencement of Sch 5, 30.6.1987, sec 2 (2) and GG No 102 of 17.6.1987, p 2945.

No 203 Miscellaneous Acts (Prickly Pear) Repeal and Amendment Act 1987. Assented to 8.12.1987.Date of commencement of Sch 2, 1.1.1988, sec 2.

No 262 Miscellaneous Acts (Disability Services and Guardianship) Repeal and Amendment Act 1987. Assented to 16.12.1987.Date of commencement of the provision of Sch 1 relating to the Minors (Property and Contracts) Act 1970, 1.8.1989, sec 2 (4) and GG No 83 of 14.7.1989, p 4199.

1989 No 144 Minors (Property and Contracts) Amendment Act 1989. Assented to 25.10.1989.Date of commencement, 21.12.1990, sec 2 and GG No 174 of 21.12.1990, p 11189.

1997 No 49 Guardianship Amendment Act 1997. Assented to 2.7.1997.Date of commencement, 2.2.1998, sec 2 and GG No 16 of 30.1.1998, p 434.

No 147 Statute Law (Miscellaneous Provisions) Act (No 2) 1997. Assented to 17.12.1997.Date of commencement of Sch 3, 3 months after assent, sec 2 (3).

1998 No 137 Justices Legislation Amendment (Appeals) Act 1998. Assented to 8.12.1998.Date of commencement of Sch 2.18, 1.3.1999, sec 2 and GG No 25 of 26.2.1999, p 973.

1999 No 31 Statute Law (Miscellaneous Provisions) Act 1999. Assented to 7.7.1999.Date of commencement of Schs 4 and 5, assent, sec 2 (1).

No 85 Statute Law (Miscellaneous Provisions) Act (No 2) 1999. Assented to 3.12.1999.Date of commencement of Sch 4, assent, sec 2 (1).

2001 No 121 Justices Legislation Repeal and Amendment Act 2001. Assented to 19.12.2001.Date of commencement of Sch 2, 7.7.2003, sec 2 and GG No 104 of 27.6.2003, p 5978.

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This Act has also been amended pursuant to an order under secs 8 (2) and 9 (3) of the Reprints Act 1972 No48 (formerly Acts Reprinting Act 1972). Order dated 11.2.1975, and published in GG No 35 of 14.2.1975,p 522, declaring that:

(a) secs 1 and 51 of the Minors (Property and Contracts) Act 1970 are enactments to which sec 8 (2) ofthe Acts Reprinting Act 1972 applies, and

(b) the Minors (Property and Contracts) Act 1970 is an enactment to which sec 9 (3) of the ActsReprinting Act 1972 applies.

Table of amendmentsNo reference is made to certain amendments made by the Reprints Act 1972, and Schedule 3 (amendmentsreplacing gender-specific language) to the Statute Law (Miscellaneous Provisions) Act (No 2) 1997.

2002 No 26 Financial Services Reform (Consequential Amendments) Act 2002. Assented to 21.6.2002.Date of commencement of Sch 2.8, 1.9.2002, sec 2 (2) and GG No 133 of 23.8.2002, p 6195.

2006 No 80 Succession Act 2006. Assented to 27.10.2006.Date of commencement, 1.3.2008, sec 2 and GG No 16 of 15.2.2008, p 707.

2007 No 94 Miscellaneous Acts (Local Court) Amendment Act 2007. Assented to 13.12.2007.Date of commencement of Schs 1.68 and 3, 6.7.2009, sec 2 and 2009 (314) LW 3.7.2009.

2009 No 49 NSW Trustee and Guardian Act 2009. Assented to 26.6.2009.Date of commencement, 1.7.2009, sec 2 and 2009 (305) LW 1.7.2009.

No 61 Occupational Licensing Legislation Amendment (Regulatory Reform) Act 2009. Assented to 16.9.2009.Date of commencement of Sch 4.7, 1.7.2010, sec 2 (2).

2010 No 34 Health Practitioner Regulation Amendment Act 2010. Assented to 15.6.2010.Date of commencement of Sch 2, 1.7.2010, sec 2 (2).

Sec 2 Rep 1999 No 31, Sch 5.71.

Sec 3 Am 1999 No 85, Sch 4.

Sec 9 Am 1987 No 262, Sch 1; 1997 No 49, Sch 3.4.

Sec 27 Am 1989 No 144, Sch 1 (1); 1998 No 137, Sch 2.18; 1999 No 31, Sch 4.60 [1]–[3]; 2001 No 121, Sch 2.149 [1]; 2007 No 94, Schs 1.68 [1] [2], 3.

Sec 28 Am 2002 No 26, Sch 2.8 [1] [2]; 2009 No 49, Sch 2.38.

Sec 29 Am 2002 No 26, Sch 2.8 [3] [4]; 2009 No 49, Sch 2.38.

Sec 40 Am 1989 No 144, Sch 1 (2); 1999 No 31, Sch 4.60 [1] [2]; 2001 No 121, Sch 2.149 [2]; 2007 No 94, Sch 3.

Sec 41 Am 1999 No 31, Sch 4.60 [1]; 2007 No 94, Sch 1.68 [3] [4].

Sec 42 Am 1999 No 31, Sch 4.60 [1]. Rep 2007 No 94, Sch 1.68 [5].

Sec 49 Am 2010 No 34, Sch 2.35.

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Sec 51 Subst 1970 No 52, Second Sch (am 1972 No 41, Second Sch). Am 1987 No 48, Sch 32; 1999 No 31, Sch 4.60 [4]; 2007 No 94, Sch 1.68 [6].

First Sch Am 1973 No 9, Sch 2; 1973 No 68, Sch 3; 1979 No 78, Sch 1; 1981 No 90, Sch 1; 1981 No 125, Sch 1; 1984 No 153, Sch 16; 1987 No 15, Sch 2; 1987 No 70, Sch 5. Rep 1999 No 85, Sch 4.

Second Sch Am 1981 No 125, Sch 1; 1982 No 148, Sch 1; 1987 No 203, Sch 2; 2006 No 80, Sch 3.11; 2009 No 61, Sch 4.7.

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minors (property and contracts) act 1970 · minors (property and contracts) act 1970 no 60 new...

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